Marijuana Scheduling Case Heard By US Appeals Court [FEATURE]

The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the US Court of Appeals in the District of Columbia Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.

Now, the battle over rescheduling has moved from DEA and HHS to the federal courts. (safeaccessnow.org)

Marijuana is Schedule I under the Controlled Substances Act, which means the government considers it to have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, ecstasy, and LSD. ASA is arguing that it should be down-scheduled, past Schedule II, which includes cocaine, methamphetamine and other amphetamines, and powerful opioid pain relievers (Oxycontin, morphine, Fentanyl), to Schedule III, which includes less harmful substances, such as steroids, less-powerful opioid pain relievers (hydrocodone, paregoric), and Marinol, or synthetic THC.

Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.

The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)

In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.

Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.

Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.

But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.

Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.

Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.

"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.

The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.

This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.

"That seems pretty straightforward," said Judge Harry Edwards.

But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.

At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.

"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.

"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."

The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.

Because Alcohol and Tobacco aren't part of the Controlled Substances act. They're treated entirely different. Why? Because they are "part of our culture" (read: because the corporations that run the alcohol and tobacco industries are major tax generators, and all the politicians are in their pockets)

So remember, kids, the stuff that kills about half a million a year... good. The stuff that's never been proven to directly kill anyone in human history... bad.

The proper strategy is not to defend marijuana, but to attack alcohol. The DEA keeps hiding behind the perverse logic of their scheduling criteria, so beat them across the head with their own weapon. By seeking a decree of specific performance and ask the courts to order them to place alcohol on the schedule according to their existing criteria it will force them to change the criteria. There may not be enough research on marijuana to make a convincing argument, but the research on alcohol is quite conclusive, it has a high potential for abuse and disastrous health consequences.

Cheers to that. Lets get real with whats real. We have a natural right to use whatever drug we choose whether "legal" or otherwise. Follow the money and you find the culprit to the hypocracy. Libertarian politics deserve to be realized by the people and first the people are beginning to realize their obligation to lead their politicians and their laws. Id say its prime time to get on board in light of how obviously the half sleeping conservatives and half awake liberals are butting their heads like ignorant rams in early spring.

I understand what you are saying but your approach would not work to legalize marijuana. It could have the potential to tighten up the rules on alcohol. The deck is stacked against the advocates of legalization by the very powerful DEA and pharmaceutical companies. A better method to make marijuana rescheduled or as legal as alcohol is to create a situation where enforcement becomes the mission impossible. A simple method to do this is for people to take their seeds and throw them into the great outdoors. Small airplanes could seed from above. If it was all over the place and no amount of law enforcement could have an effect then you would see the lawfully constituted authorities have to give it up or continue with prohibition leading to the discrediting of all other laws. It's more often the little things that get you than the bigger ones.

To get a year off my sentence for growing marijuana plants I attended and graduated from the Federal Drug abuse program RDAP at the federal prison camp in Beckley WV cohort 34 released Sept.11, 2006. Look me up on BOP.gov I will be listed there forever.

The one thing that I will never forget is one morning the former prison guard, then a federal drug treatment specialist, said this....

"okay, all my pot heads in hear listen up, with these other guys we can show them how their drug is hurting them. What you need to know is that you are not being hurt by your drug, you are being hurt by the law."

Listen to the Medical Doctors, why would they lie, they just want to help their patients.

Okay so the DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understood. Wait a minute here... but they allow for the use of designer drugs by psychiatrists - that permanently disable some mentally and even kill them - where they have absolutely no idea or indication how they work and they are using these drugs to systematically poison American's. But they allow this why? Because the drug companies have powerful lobbyists putting money into government's pockets.

who the fuck is the DEA "DRUG ENFORCEMENT AGENCY" In the world of Science and Medicine , NATIONAL INSTITUTE OF HEALTH or NIH <-- I would think would be pretty high on the pole of National knowledge and creditability on the positive nature of Cannabis however, the DEA has them by the nuts some how and no one wants to hear them say, Cannabis does have medical value therefor it needs and must be removed from schedule 1. It is treated as a Narcotic when in fact it is not.

Okay so the DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understood. Wait a minute here... but they allow for the use of designer drugs by psychiatrists - that permanently disable some mentally and even kill them - where they have absolutely no idea or indication how they work and they are using these drugs to systematically poison American's. But they allow this why? Because the drug companies have powerful lobbyists putting money into government's pockets.

The police force needs to go after real criminals not go after people that are using drugs and general only hurting themselves. I personally do not want to pay for someone to go to jail for smoking marijuana. Human beings have cannabis receptors in their brains because marijuana has been used for generation after generation as a medicine so much in fact it is now an evolutionary receptor in our brains. If alcohol is legal so should MJ be as alcohol is a much worse drug for humans. It is a poison and probably more of a gateway drug then MJ is. People commit much more risky behavior when drunk then stoned and are more likely to try other harder drugs while intoxicated and have casual sex with strangers and increase AIDS, STDS, etc.

Several years ago, I had surgery on my right shoulder. Pain medication was prescribed…”take one capsule every 4 hours.”

I took one capsule.
I was down for over 20 hours. When I came to, I felt like I had been hit by a truck. The next time I felt discomfort, I smoked a small amount of marijuana …pain gone, no after effect.

I threw the pills out.

That was the only prescription medication I have taken in the past 30 years. That one pill made me feel worse, both physically and mentally than anything I think I have ever encountered.

I watched over a course of 10 years what ‘prescription medication’ did to my Mom. And there was nothing I or my family could do to dissuade her. In her eyes, ‘her doctor’ was the ‘supreme being.’ The biggest pill pusher in Boca Raton, Florida.

My Mom killed herself in 1988. And, I will always believe her suicide was directly related to her ‘medication.’

I have no use, or love, for ‘big pharma.’
Looking back, had I have had a brain…and not been so indoctrinated as to the evils of marijuana, I would have offered it to my Mom. A lot of folks may scream and holler over this…but, I truly believe, with marijuana, I could have weaned her from the ‘medication’ that led to her death.

The bitch of the whole issue, is that now, many of these ‘medications’ list ‘suicide’ as a potential ‘side effect.’

What the hell is wrong with this picture?

After spending 5 years in Federal Prison for a marijuana offense, I wrote: Shoulda Robbed a Bank
Tales of Americans living free…and using marijuana in the pursuit of happiness…harming no one nor their property.

The thought of giving your mother cannabis is not absurd in the least. Think about it. Us... mankind... we have successfully demonized cannabis. A natural plant that heals the sick. We have it all wrong, and personally I don't have much respect for mankind because of this. This plant should be grown everywhere, however, Big Pharma would lose hundreds of billions and there in lies the problem. Alcohol, prescription drugs, and tobacco kills tens of millions of people every year worldwide and yet this nearly completely harmless natural plant is illegal. And we have a bunch of bureaucrats in a courtroom telling us that cannabis has no medicinal value. What a joke. I'm sorry but I am totally disgusted with the whole thing.

The DEA will NEVER allow marijuana to be legalized. They are Anslinger groupies who have pledged to NEVER question their commitment to the prohibition and NEVER question whether it causes more harm than good. To do so would be to "give in".

GusGus, that's the 2010 version of my MMJ List. It is good, but there are newer and larger versions of "Granny's List" available online! But check out the bottom of my sig in that post to find my email. I will send everyone who sends me an email a copy of the new 2012 List. It is a full 840 pages of links to an amazing assortment of medical studies and news articles all on cannabis and cannabinoids. My List is sent free as a PDF attachment and can be useful for patients, activists, students, or anyone who wants to know more about this healing herb.

It seems that many DEA higher-ups and medical study experts have control issues, and are the kinds of folks who tried pot in college, had an anxiety attack, and shunned it thereafter.

As an anxiety expert from the laboratory of self experience, as well as a solid stoner today, I recognize the validity of Fear in making determinations of cannabis' value.

Such temperaments should not use weed recreationally, particularly not socially. Privately however, one can allow the weirdness of the experience out. It's all about what one's mind and ego are doing to fight the effects of lifting off, and going to a place of judgment that may feel unfamiliar and threatening, or scary smart. This may sound crazy, but try to stop caring. (By the way, weed anxiety can be instantly calmed with a shot of liquor. Yin and yang.)

Empirical studies called elections are demonstrating that majorities of voters place a high value on their cannabis experiences. They're not harming anyone. Why not let them be? Drop the odious Schedule One curse.